OLIVEROS v. MITCHELL
FILED
United States Court of Appeals
Tenth Circuit
May 17, 2006
Elisabeth A. Shumaker
Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
LOUREN OLIVEROS, as personal
representative of the Estate
of
Jeremy Blouin, deceased,
Plaintiff-Appellant,
No. 05-2163
v.
VINCE MITCHELL; GLENN MEARLS;
CITY OF FARMINGTON,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-04-51 LH/RHS)
Submitted on the briefs:(1)
Paul J. Kennedy, Mary C. Han, Adam S. Baker, Kennedy & Han, P.C.,
Albuquerque, New Mexico, for Plaintiff-Appellant.
Lisa Mann, Erin E. Langenwalter, Modrall, Sperling, Roehl, Harris & Sisk,
Albuquerque, New Mexico, for Defendants-Appellees.
Before TYMKOVICH, McKAY, and BALDOCK, Circuit Judges.
(1) After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
TYMKOVICH, Circuit Judge.
During his arrest by Farmington, New Mexico, police officers on
December 18, 2002, Jeremy Blouin was shot in the hip when a police handgun
discharged. Blouin disappeared in a swimming mishap six months after the
incident and is presumed dead. Louren Oliveros, Blouin's personal
representative, subsequently sued the City of Farmington and the two police
officers based on the shooting. Oliveros claims that the defendants violated
Blouin's Fourth and Fourteenth Amendment rights and committed assault, battery,
and negligence in the course of arresting Blouin in 2002. Her claims arise under
42 U.S.C. 1983 and state tort law.
The district court denied Oliveros's motion for partial summary judgment
and granted summary judgment to the defendants on all claims. The court held
that her intentional tort claims did not survive Blouin's unrelated death and that
no waiver of governmental immunity applied under the New Mexico Tort Claims
Act, thereby necessitating dismissal of the negligence claim. Oliveros appeals
from that order. She also asks this court to certify to the New Mexico Supreme
Court the question of whether under New Mexico law, intentional tort claims
survive the unrelated death of the would-be plaintiff.
We exercise jurisdiction pursuant to 28 U.S.C. 1291. For the reasons
discussed below, we deny Oliveros's motion for certification and affirm the
district court's grant of summary judgment to the defendants.
I. Background
On December 18, 2002, defendants Vince Mitchell and Glenn Mearls,
Farmington police officers, engaged in a high-speed chase of a vehicle driven by
Blouin. After Blouin's car came to a stop, while defendants were handcuffing
and arresting him, Mitchell's firearm discharged into Blouin's hip. Mitchell
claims that the shooting was accidental. Oliveros does not concede that the
shooting was an accident, but argues that if it was, it was caused by defendants'
negligence.
Six months after the incident in question, Blouin disappeared while
swimming in a lake near Farmington and is presumed dead. The parties agree
that Blouin's apparent drowning was completely unrelated to the police shooting.
Oliveros filed this action as the personal representative of Blouin's estate.
Her complaint states three causes of action. First, she claims that Mitchell's use
of deadly force against Blouin was an unreasonable seizure in violation of the
Fourth and Fourteenth Amendments. Second, she claims that in arresting Blouin,
both Mitchell and Mearls used excessive force also in violation of the Fourth and
Fourteenth Amendments. Her third count charges Mitchell and Mearls with
assault and battery and with breaching their duty of care to Blouin "by recklessly,
grossly negligently, and negligently operating their police units, weapons,
and other public equipment." Aplt. App. at 16. Oliveros claims that the City
of Farmington is liable for the police officers' acts based on the theory of
respondeat superior.
II. Intentional Tort Claims Under New Mexico Law
The district court dismissed Oliveros's intentional tort claims holding that
under the common law, such claims did not survive Blouin's unrelated death. She
disagrees, arguing that New Mexico's highest court would likely hold that
intentional tort claims survive the unrelated death of the would-be plaintiff
because such a holding would be consistent with State law governing negligence
claims.
On appeal, Oliveros asks us to certify the following question to the New
Mexico Supreme Court:
Whether intentional tort claims brought under the New Mexico Tort
Claims Act survive the would-be plaintiff's unrelated death for
purposes of a lawsuit filed by the personal representative of his
estate.
"Whether to certify a question of state law to the state supreme court is within the
discretion of the federal court." Armijo v. Ex Cam, Inc., 843 F.2d 406, 407
(10th Cir. 1988). Where the "state's highest court has not addressed the issue
presented, the federal court must determine what decision the state court would
make if faced with the same facts and issue." Id. We agree with the district court
that any claims arising out of defendants' alleged intentional misconduct did not
survive Blouin's death. And since this conclusion is mandated by applicable New
Mexico law, we see no need to certify the question to the New Mexico Supreme
Court.
" Under the common law, personal tort actions died with the person of
either the plaintiff or the defendant." Rodgers v. Ferguson, 556 P.2d 844, 846
(N.M. Ct. App. 1976); 558 P.2d 619; accord Cain v. Bowlby, 114 F.2d 519, 521
(10th Cir. 1940). New Mexico's survival statute alleviates the harshness of the
common law rule by carving out certain causes of action. It provides:
In addition to the causes of action which survive at common law,
causes of action for mesne profits, or for an injury to real or personal
estate, or for any deceit or fraud, shall also survive, and the action
may be brought, notwithstanding the death of the person entitled or
liable to the same. The cause of action for wrongful death and the
cause of action for personal injuries, shall survive the death of the
party responsible therefor.
N.M. Stat. 37-2-1 (1978) (emphasis added). Thus, the statute contemplates that
the death of the defendant/tortfeasor would not extinguish a personal injury
action. The statute, however, does not identify personal injury actions among the
claims that survive the "death of the person entitled," i.e., the would-be plaintiff.
The New Mexico Court of Appeals has characterized this statutory scheme
as recognizing a different outcome with respect to the survival of a personal
injury claim when the injured person, rather than the tortfeasor, dies before filing
suit. Rodgers, 556 P.2d at 848-49. The claims in Rodgers stemmed from a car
accident involving the defendants and Joseph Wheaton, who subsequently died
from causes unrelated to the accident. After Wheaton's death, his estate sued the
defendants for negligence. Since the facts did not fit within New Mexico's
survival or abatement statutes, the court looked to the common law to determine
whether the plaintiff's negligence claim survived Wheaton's unrelated death.
Departing from the common law, the court held that it did. Id. at 847. In doing
so, however, the court drew an important distinction between intentional tort and
negligence claims, stating:
[H]istorical application of the non-survival rule was to violent and
intentional torts. It did not develop in connection with the type of
tort in this case-negligence-because the tort of negligence did not
evolve until approximately 1825.
Id. The court concluded that "[a]bsent specific justification, the [common law
non-survival] rule should not apply to torts which did not exist when the rule
developed." Id. Thus, in addition to the causes of action listed in the survival
statute, under Rodgers, personal injury claims arising from negligence survive the
death of the would-be plaintiff. Importantly, the Rodgers court made clear that it
was "express[ing] no opinion as to the non-survival of other actions under the
common law," id. at 850, and it reaffirmed that the common law determines
the survivability of claims not enumerated in New Mexico's survival statute,
see id. at 849.
New Mexico's highest court has not yet addressed the survivability of
intentional tort claims in light of the survival statute and the exception for
negligence claims carved out in Rodgers. Accordingly, we must attempt to
resolve the issue as the New Mexico Supreme Court would. Armijo, 843 F.2d at
407. In our view, New Mexico courts would apply the common law rule and
conclude that intentional tort claims do not survive the injured party's unrelated
death. Although Rodgers departed from the common law, it specifically did so
only in the context of negligence claims. It was careful to base its holding on the
differing historical antecedents between negligence and intentional conduct, and
provides a clear analytical distinction between the causes of action. Based on the
court's careful analysis, we are confident the New Mexico Supreme Court would
interpret the survival statute as not applying to intentional tort claims. This
conclusion is also consistent with our previous decision addressing New Mexico's
survival statute and the common law rule. See Gruschus v. Curtis Publ'g Co.,
342 F.2d 775, 776 (10th Cir. 1965) (upholding dismissal of defamation claim
because it was not listed in survival statute).
Oliveros argues that a case subsequent to Rodgers, Padilla v. Estate of
Griego, 830 P.2d 1348 (N.M. Ct. App. 1992), suggests that New Mexico courts
would reach a different result. We disagree. In Padilla, the court interpreted the
survival statute in a case involving the death of the tortfeasor, not the victim, a
situation specifically contemplated by the statute. Under the express language of
the statute, the court had no choice but to uphold the claims. Id. at 1352. Since
this case involves the death of the alleged victim, Padilla lends no support to
Oliveros's argument.
Finally, raising the issue for the first time on appeal, Oliveros argues that
New Mexico's survival statute frustrates the policies underlying 1983 and is
thus inconsistent with federal law and the Constitution. Since she failed to make
this argument in the district court, we conclude that the argument has been waived
and decline to consider it.(1) See Rosewood Servs., Inc. v. Sunflower Diversified
Servs., Inc., 413 F.3d 1163, 1167 (10th Cir. 2005).
Accordingly, we agree with the district court that Oliveros's tort claims did
not survive Blouin's death.
III. Summary Judgment
"We review a district court's grant of summary judgment de novo, using
the same standards applied by the district court." Baca v. Sklar, 398 F.3d 1210,
1216 (10th Cir. 2005). Viewing the evidence and reasonable inferences drawn
from the evidence in the light most favorable to the nonmoving party, we will affirm
a grant of summary judgment only where "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
A. The Intentional Tort Claims
The district court dismissed plaintiff's 1983 claims pursuant to the
common law non-survival rule because it found those claims most analogous to
intentional tort causes of action. We agree with that conclusion. Plaintiff's
1983 claims are premised on defendants' excessive use of force and
unreasonable seizure of Blouin in violation of his Fourth Amendment rights.
The Supreme Court has held that such claims are necessarily predicated on
intentional conduct. Brower v. County of Inyo, 489 U.S. 593, 597 (1989) (holding
that a Fourth Amendment violation entails "governmental termination of freedom
of movement through means intentionally applied") (emphasis in original).
As discussed above, Oliveros's claims premised on intentional misconduct
did not survive Blouin's unrelated death. Accordingly, we affirm the district
court's grant of summary judgment to defendants on Oliveros's 1983 claims.
For the same reasons, we affirm the dismissal of the state law assault and battery
(1) We note, however, that New Mexico's abatement statute affords broad
protection to pending claims in the event of a party's death and, in fact, would
have saved the 1983 claims in this case had Blouin filed them before he died.
See N.M. Stat. 37-2-4 (1978). We would have difficulty concluding that New
Mexico's survivorship laws undermine the goals of 1983 just because they
result in the dismissal of the 1983 claims in this case. See Robertson v.
Wegmann, 436 U.S. 584, 593 (1978) ("A state statute cannot be considered
`inconsistent' with federal law merely because the statute causes the plaintiff to
lose the litigation.").
claims.
B. The Negligence Claim
The New Mexico Tort Claims Act, N.M. Stat. 41-4-1 through 41-4-27
(1978), "shields government entities and public employees from tort liability
unless immunity is specifically waived by the Act." Archibeque v. Moya,
866 P.2d 344, 346 (N.M. 1993). Section 41-4-12 of the Act provides a waiver of
immunity for certain torts committed by law enforcement officers and for
negligence that causes a specified tort.(2) See Methola v. County of Eddy, 622 P.2d
234, 238 (N.M. 1980); Caillouette v. Hercules, Inc., 827 P.2d 1306, 1311
(N.M. Ct. App. 1992). In this case, the district court concluded that the
defendants' immunity was not waived pursuant to 41-4-12, because Oliveros did
not allege one of the predicate torts enumerated in that section. We agree with
the district court's analysis. The law is clear that immunity is not waived under
41-4-12 for "negligence standing alone." Caillouette, 827 P.2d at 1311 (relying
on Bober v. New Mexico State Fair, 808 P.2d 614 (N.M. 1991)). Since Oliveros's state
claim is for personal injuries resulting from negligence, she cannot avail
herself of the waiver of immunity provided by 41-4-12.
Finally, Oliveros argues she is entitled to the waiver of immunity found
under 41-4-6 of the Act, which waives a public employee's immunity for
negligence committed in the operation or maintenance of equipment.(3) That
section provides in relevant part:
The immunity granted pursuant to Subsection A of Section 41-4-4
NMSA 1978 does not apply to liability for damages resulting from
bodily injury, wrongful death or property damage caused by the
negligence of public employees while acting within the scope of their
duties in the operation or maintenance of any building, public park,
machinery, equipment or furnishings.
It is clear under New Mexico law that law enforcement officers may be
sued under 41-4-6 for negligently operating equipment. Smith v. Vill. of
Ruidoso, 994 P.2d 50, 57 (N.M. Ct. App. 1999). Oliveros's theory is that officers
Mitchell and Mearls waived their immunity pursuant to this section by negligently
operating their police equipment, "to wit a gun and handcuffs." Aplt. Br. at 10.
We disagree.
The New Mexico Supreme Court has held that 41-4-6 is designed to
protect the general public. Archibeque, 866 P.2d at 347-48. In Archibeque, the
(2) Section 41-4-12 provides:
The immunity granted pursuant to Subsection A of Section 4144
NMSA 1978 does not apply to liability for personal injury, bodily
injury, wrongful death or property damage resulting from assault,
battery, false imprisonment, false arrest, malicious prosecution,
abuse of process, libel, slander, defamation of character, violation of
property rights or deprivation of any rights, privileges or immunities
secured by the constitution and laws of the United States or New
Mexico when caused by law enforcement officers while acting within
the scope of their duties.
(3) Although the district court did not discuss Oliveros's argument under this
section of the Tort Claims Act, she made the argument in support of her Motion
for Partial Summary Judgment, thereby preserving the issue for appeal.
court concluded that an interpretation of the Act that applied to every individual
allegation of government negligence was unsupportable:
Reading Section 41-4-6 to waive immunity every time a public
employee's negligence creates a risk of harm for a single individual
would subvert the purpose of the Tort Claims Act, which recognizes
that government, acting for the public good, should not have the duty
to do everything that might be done, and limits government liability
accordingly.
Id. at 348 (quotations omitted). As such, a public employee's immunity is waived
and he is subject to suit only when his conduct puts the general public at risk.
In Archibeque, the plaintiff prisoner charged the defendant prison officer
with negligence after the plaintiff was misclassified and placed in the general
prison population. Finding no waiver of immunity under 41-4-6, the court held
that although the defendant's conduct put the plaintiff at risk, plaintiff's
misclassification did not create a safety risk to the general prison population. Id.
at 348. The court reaffirmed this public endangerment requirement in Espinoza v.
Town of Taos, 905 P.2d 718, 721 (N.M. 1995), a premises liability case, stating
that the critical question in the 41-4-6 analysis is whether the condition
complained of creates a potential risk to the general public. The Court of Appeals
subsequently interpreted Espinoza as requiring "(1) a condition that (2) creates a
danger to the general public" before immunity will be waived under 41-4-6.
Baca v. State, 911 P.2d 1199, 1200 (N.M. Ct. App. 1996).
We conclude that the alleged negligence in this case, defendants' alleged
mishandling of a firearm and handcuffs while apprehending Blouin, did not put
the general public at risk, and therefore, immunity was not waived under
41-4-6. Viewing the evidence in the light most favorable to Oliveros, Mearls'
act of slamming into Blouin while Mitchell had his gun drawn certainly put
Blouin, and for that matter both officers, at risk. But we fail to see how this
incident created a danger to the general public. The event in question occurred in
the middle of the night and it is clear from the police videotape (Aplt. App.
Vol. 2) that no members of the public were present. Since Oliveros has not
alleged any acts of negligence that endangered the general public, she cannot
avail herself of the immunity waiver provided in 41-4-6. We therefore affirm
the district court's grant of summary judgment to defendants on the negligence
claim.
IV. Conclusion
The judgment of the district court is AFFIRMED, and Plaintiff's Motion
For Certification of Question of State Law to the New Mexico Supreme Court is
DENIED.